Tuesday, April 9th, 2024
Staying calm and keeping your wits about you during and after an auto accident in Virginia is no easy task. Accidents happen fast, and the events that unfold afterwards can happen just as fast. The situation can also be complicated by any number of additional factors: injuries, anxiety, and answering questions from numerous individuals.
There is no one-size-fits-all response that is appropriate in every auto accident. This is why it is vital to consult an experienced Virginia personal injury attorney as soon as possible, so you can get specific and tailored advice that takes into account the specific details of your circumstances.
There are some generalizations, however, that are true. Below are some tips and advice to aid you in confronting your accident and responding in the days and weeks that follow.
1. Control Your Vehicle
Proper response to an accident begins before the wheels stop spinning. Your first priority, greater than any consideration of liability or fault, is to survive the accident and minimize the chance you suffer significant injuries. When a collision occurs or is imminent, it is often the case that individuals simply freeze and stop driving the car. Never relinquish control of your vehicle. Do what you reasonably can to avoid the worst of the collision: take emergency action, and, if possible, navigate to safety entirely.
2. Assess the Situation
After the collision, monitor your surroundings and take appropriate action to prevent further accidents or injury. Can you safely move to the side of the road? Do you need to evacuate the passengers from the car and safely behind a guardrail? Can you place road flares or reflective triangles to warn oncoming motorists of the upcoming danger?
Further, you should assess your medical condition and that of your passengers or other individuals involved in the accident.
3. Call 911 or Appropriate Emergency Services
When safe to do so, call appropriate emergency services. Even if you feel that there are no injuries that warrant a trip to the emergency room, it still may a good idea to get checked out. It is better to be safe than sorry.
Responding police officers can help direct traffic in the area and ensure that you, your passengers, and other motorists on the road remain safe. Additionally, and especially if you aren’t at fault for the accident, having a neutral assessment of the manner and cause of the accident can help with later litigation. The responding officers may seek statements from the parties as well take photographs of the scene.
4. Carefully Consider Statements
When making statements, either to the police or to anyone else at the scene, carefully consider your words. While an accident and its immediate aftermath can be an extremely stressful time, it is important to try to calm yourself, get your wits about you, and avoid speaking from a place of hysteria or emotion.
It is extremely easy to make a statement that can be used against you later, especially when caught up in the emotion of the moment. Comments like “That guy came out of nowhere!” and “I didn’t even see her!” can be used to demonstrate that you failed to keep proper lookout. Also be careful with expressions of sympathy or apologies. While these statements on their own may not be an admission of guilt, these statements often accompany other statements that can be. For example, consider the statement “I am so sorry! I thought the way was clear!” The statement of sympathy may not be admissible against you, but your statement that you thought the way was clear likely would be.
5. Document the Scene
While responding officers may document the scene, it is not a good idea to completely rely on them. If you are medically able and it is safe to do so, it is a good idea to document the scene. This could include taking pictures of the vehicles and the damage caused by the collision. It can also including taking video (but pay careful consideration to what you say on the video, that audio lasts forever).
It is also important to remember that the “scene” is more than just the location of the accident. Proving your medical condition and your injuries associated with the accident will be vital during future litigation. Remember to record your condition, via video, pictures, and written recordings of your condition and experiences. It is easy to forget important things, especially when they are unpleasant and you wish you had never experienced them in the first place.
6. Seek Medical Attention
Don’t be a hero. You are not a medical expert. If you feel pain, you have no clue what the source of that pain is. You do not know the severity of the injury that is precipitating that pain. You do not know if you will recover, given enough time, or if this is just the start of a lifetime of pain and discomfort.
Seek medical attention. Lots of people have “toughed it out” only to discover much later that they were more injured than they thought they were. First and foremost, this would mean that you have suffered more than you had too. You have experienced pain and discomfort that a trained professional might have alleviated. More than that, you may have prejudiced your personal injury case. If there is a large gap between the accident and your medical treatment, you can bet that this will be use against you later.
7. Notify Your Insurance
As soon as you are able after an accident, you should notify your insurance company. Many insurance contracts require you to notify the company of an incident within a reasonable time. If you fail to do so, you can waive your coverage for the accident. You should also make sure that you are given the other driver’s insurance information.
8. Seek a Qualified Personal Injury Attorney
Finally, seek the tailored advice of a qualified personal injury attorney. While it is never too soon to seek competent legal counsel, sometimes it can be too late. Virginia has a two year statute of limitations that is nearly absolute. If you miss this deadline, your case is dead. It doesn’t matter how good your case is. It doesn’t matter how injured you were. If you miss this statutory deadline, you may miss your opportunity to seek compensation for your losses.
Again, while this is not intended to be an exhaustive checklist of how to respond to an auto accident in Virginia (no such checklist could ever be exhaustive), following these tips can help you respond to what will, in all likelihood, be a difficult situation. Those injured in an auto accident in Virginia would be wise to consult with a Virginia personal injury attorney who is familiar with all of the pitfalls associated with litigating this type of case. Plaintiffs in Southwest Virginia would do well to hire a personal injury lawyer in Roanoke, Virginia. There is no need to go through this alone.
Monday, April 8th, 2024
I admit it. I am an appellate argument junkie. This has been a long-standing problem, but one that took on new dimensions when the Supreme Court of Virginia began releasing audio recordings of oral arguments about ten years ago. I then began listening to the Court’s arguments in earnest. Now, of course, the availability of audio recordings of appellate arguments is ubiquitous. This means that anyone can hear an appellate argument without their leaving the house, car, or office. I don’t know about anyone else, but I’m hooked.
So is this a good habit or a bad one? Because I am an appellate lawyer, I think I can claim this habit as a good one. Supreme Court of Virginia recordings provide a look at the Court as a whole, how each of the seven justices approach the decision-making process, and how the justices interact with each other. Perhaps the same is true of appellate courts that sit in panels of three for argument, but a study of those courts as a whole are limited to the infrequent times when those courts sit en banc.
My habitual listening to appellate arguments for a decade has reinforced some suspicions I have had about the Supreme Court of Virginia, and about appellate arguments in general. And, they provide some valuable insight for appellate lawyers.
First, the justices are often talking to each other when they ask questions.
This is something that is hard to follow during the heat of oral argument. After listening to the argument after the fact, though, it is clear that many questions are not really for the advocate, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position. This provides a view into what an individual justice is thinking or how she might approach or decide the case.
So does this mean that the advocate’s answers don’t matter? Are we just pawns on the Court’s chess board? Not at all. Our answers to those questions can influence the judicial discussion that is playing out during the argument. And, equally important, those answers could affect the outcome of the case by showing why our position is right.
Second, some questions are not what they sounded like when asked.
During the argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering a prepared argument and fielding a barrage of questions. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In a post-hoc review, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.
Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss. Responding effectively and fully to the Court’s questions is a necessary step on the path to victory.
Third, the Court genuinely wants to understand the argument and its ramifications.
This is why the justices ask hypothetical questions. They want to test the boundaries and effect of a ruling in your favor in future cases involving different facts. And this is why a justice may press the advocate to define the scope of the ruling that is sought and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position and becoming comfortable with it.
Embrace the opportunity to help the Court do its job well. Before you arrive at the courthouse steps, know the rule you are asking the Court to adopt, the limiting principles of that rule, and how it would apply in future cases involving different facts.
Finally, audio recordings only tell you half the story.
Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of a live argument cannot be captured in a recording. Many essential ingredients to an effective oral argument, such as genuineness, credibility, enthusiasm, engagement, and rapport with the Court are not fully experienced in an audio recording. Therefore, being there in person is the only way to fully appreciate an argument, although that won’t stop me from listening to recordings.
Because an effective argument needs the intangibles that are only possible with live engagement with the Court, you should not agree to argue your case by phone unless you have to. A live appearance is better.
You may access audio recordings of the Supreme Court of Virginia’s merits arguments since January 7, 2014, at https://courts.state.va.us/courts/scv/oral_arguments/home.html. Audio recordings of the Court of Appeals of Virginia’s arguments since May 20, 2014, are available at Court of Appeals Oral Arguments (vacourts.gov). To listen to audio recordings for arguments before the United States Court of Appeals for the Fourth Circuit since May 2011, click on this link: Listen to Oral Arguments (uscourts.gov).
Contact us today if you have any questions.
Wednesday, March 27th, 2024
Article co-written by Matthew Broughton, Jared Tuck, and intern Nicholas Beck
In Virginia, a minor’s personal injury case typically has a statute of limitations of two years from the child’s 18th birthday. However, that deadline does not apply when the injury was caused by a medical provider’s negligence. If your child’s claim does not get filed before the expiration of the two-year statute of limitations, then his or her claim may be forever barred.
The statute of limitations for a minor’s medical malpractice case can often be confusing, but with the help of experienced Virginia medical malpractice attorneys, your child can hopefully receive the compensation he or she deserves.
The Rule
Virginia Code § 8.01-243.1 requires that medical malpractice lawsuits involving minors be brought “within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action.” Unlike most personal injury cases involving children, lawsuits against negligent doctors, physicians, and other medical providers generally must be filed within 2 years or by the child’s 10th birthday, whichever is longer.
For example, when a 10-year-old child is injured in a car accident, the clock does not begin ticking until his 18th birthday. He then has 2 years from the start of the clock to file a claim in Virginia general district or circuit court.
In contrast, if your 10-year-old suffers an injury from the alleged negligence of a doctor or other healthcare provider, he has 2 years from the date of injury to file the claim, with limited exceptions. These exceptions include but are not limited to, failure to diagnose cases and injuries involving medical devices. For a full overview of personal injury statutes of limitations, including the limited exceptions to the general rules regarding statutes of limitations in personal injury actions, see here.
What You Can Do
You may be asking yourself, “How is my child supposed to sue his doctor before he can vote?” That’s a great question, and we’re here to help.
Be present for all doctor appointments, ask questions, and take notes.
For a child to file a lawsuit, it must be filed by his or her “next friend,” who is usually the child’s parent or guardian. Being in the room with your child and his or her doctor helps in preventing miscommunications and misunderstandings. Medical terminology can be confusing for adults, let alone children. If you or another responsible adult aren’t in the room to get the full picture and to ask questions, then it is harder to identify if something goes wrong.
If you don’t understand the provider’s medical terminology, then ASK!
This is especially important before your child receives a new medicine or undergoes a medical procedure. Medical providers are required by law to obtain informed consent, and minors cannot legally consent on their own. When you have a better understanding of the risks of a medicine or procedure, you can more easily identify if and when an unknown risk occurs.
Consult an experienced Virginia medical malpractice attorney.
As mentioned, medicine and medical terminology can be confusing all on its own. When you throw in the legal aspects of medical malpractice, an entirely new layer of confusion gets added. Only a team of experienced and knowledgeable medical negligence lawyers with the resources to take on hospitals, health systems, and other practices can appropriately handle the complex nature of medical malpractice cases.
Unlike many personal injury cases, medical malpractice lawsuits require an in-depth review of your child’s medical records. Our team of Virginia medical malpractice attorneys has in-house medical specialists who can promptly and effectively evaluate your child’s case. Once your child’s case is evaluated by the medical specialists and Virginia medical malpractice attorneys, an expert medical provider will need to certify your claim before it can be filed in court, see here.
All of this takes time and money. Fortunately, Gentry Locke is an experienced medical malpractice law firm that has the resources to help your child receive the relief he or she deserves.
Conclusion
In sum, when you and your family are dealing with the trauma of medical malpractice to your child, it is understandably emotional and confusing. There is a lot to do within the two-year timeframe before your child’s case expires, and only a team of experienced Virginia medical malpractice attorneys with the appropriate resources can handle such a complex case. If you or your child have suffered from what may be medical malpractice, do not hesitate to contact us today!
Thursday, March 14th, 2024
In October 2021, the United States Department of Justice (DOJ) announced its Civil Cyber-Fraud Initiative. The purpose of this initiative is to combat cybersecurity vulnerabilities and cyber threats by ensuring federal contractors and grantees implement required cybersecurity standards. Whistleblowers play a critical role in the initiative. Cybersecurity fraud is often difficult for the government to detect, so the DOJ relies on insiders to report violations under the federal False Claims Act (FCA).
The FCA allows whistleblowers, known as “relators,” to bring a lawsuit regarding an entity’s false claims to the United States for payment. This is known as a qui tam lawsuit, because it is brought in the name the government. The lawsuit is filed and initially kept under seal to allow the government to investigate.
A FCA cause of action generally has four elements: (1) falsity; (2) knowledge; (3) materiality; and (4) damages. In the cybersecurity context, the falsity element requires a false or fraudulent statement concerning the entity’s cybersecurity practices or compliance, made in connection with a federal contract or grant. This false or fraudulent statement must be made knowingly, which encompasses actual knowledge, deliberate ignorance, and reckless disregard of the truth or falsity of the information. Materiality focuses on the significance of the false or fraudulent statement—it must, at minimum, have a natural tendency to influence, or be capable of influencing, the government’s payment decision. Finally, damages focus on the harm to the government. If successful, government’s actual damages may be tripled, and a court may award civil penalties. The whistleblower will receive a “relator’s share” between 15% and 30% of the government’s recovery.
Two years in, the DOJ continues to make cybersecurity enforcement a top priority, and has a string of successful recoveries, including:
Most recently, on September 1, 2023, the United States District Court for the Eastern District of Pennsylvania unsealed a FCA lawsuit brought by a qui tam relator alleging Penn State University falsely certified its compliance with various cybersecurity controls in a DOD contract.[1] While the DOJ declined to intervene—at least for now—it continues to actively investigate the case.
Cybersecurity requirements may exist in any federal contract or grant; however, they are most prevalent in the defense, health care, and research sectors. These requirements could include:
- The Federal Information Security Modernization Act of 2014 (FISMA) contains the most broadly applicable cybersecurity provisions. FISMA requires federal agencies and contractors that operate federal information systems to implement the required minimum protections and practices—termed “controls”—in the National Institute of Standards and Technology (NIST) Special Publication 800-53, “Recommended Security Controls for Federal Information Systems” (SP 800-53).
- As for Department of Defense (DoD) contracts, these include specific provisions under Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, “Safeguarding Covered Defense Information and Cyber Incident Reporting.” This regulation requires defense contractors to implement NIST Special Publication 800-171 (SP 800-171) to protect controlled unclassified information (CUI).
Both FISMA and DFARS require federal contractors to demonstrate compliance with the applicable cybersecurity controls in a number of ways, including submission of documentation (for example, a System Security Plan or “SSP”), audits (such as a third-party independent assessment), and annual security reviews. An FCA violation can occur when federal contractors make false or misleading statements concerning the status or implementation of the applicable cybersecurity requirements.
If you are concerned about cybersecurity compliance efforts, or are interested in learning more about the FCA, please contact a member of Gentry Locke’s Whistleblower Claims & Qui Tam Team.
[1] United States of America, ex rel. Decker v. Pennsylvania State University, Case No. 2:22-cv-3895 (E.D. Pa.)
Friday, March 8th, 2024
On January 10, 2024, Virginia returned to fully divided government, with the General Assembly entirely controlled by one party and the Executive Mansion controlled by the other party. While hope springs eternal for bipartisanship and compromise, this era of political brinksmanship will make the Virginia Budget the legislative tool through which the General Assembly will attempt to force its will. How far that can go implicates thorny and unanswered constitutional questions—questions that the Supreme Court of Virginia may soon be called upon to answer.
A Brief Virginia Government Lesson
First, a recap on the basics. The legislative process requires both the Virginia House of Delegates and Virginia Senate to pass the same, identical bill. The Governor may veto legislation he or she disapproves. Only if 2/3 of both houses vote to override does the bill become law notwithstanding the Governor’s veto. Otherwise, the veto stands and the bill does not become law.
With most legislation, a closely divided General Assembly means that the Governor’s veto will often be the last word, particularly on party-line issues. That’s because there is unlikely to be a 2/3 majority in both houses to override the veto. So divided government often means, in Virginia at least, that party-line bills do not become law.
The Budget is a Law, Not Just a Spending Plan
But these typical rules do not apply to the state’s budget (the “Budget”). That’s because, by constitutional requirement, there has to be a law passed to authorize state spending, and that law cannot do so for longer than 2.5 years. See Va. Const. Art. X, § 7 (“no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same”). That means that the Governor—and all of state government—needs a Budget bill to re-authorize government spending. And therein lies the General Assembly’s ultimate leverage: it can “legislate” through the Budget. And when the policy issue is tied up with the ability to operate state government, that puts the Governor in a potentially tough spot to exercise any veto authority.
Before joining the Governor’s Office as inhouse counsel, I had no idea just how expansive the budget was in enacting law and policy. But it reaches in directions far and wide. It directs state regulatory agencies to enact (or not enact) certain rules and regulations across the entire array of regulated entities—or even to approve or not approve particular projects or initiatives. Indeed, the Budget bill generally contains language saying that it applies “[n]otwithstanding any other provision of law,” and so is supreme over any conflicting law (aside from the Virginia Constitution or controlling federal law). HB 30 (Current Budget bill), § 4-13.00 Conflict with Other Laws. More recently, the Budget has legislated on topics seemingly distant from any appropriation: criminal penalties for marijuana possession, casino referenda, and skilled gaming regulation, among other topics.
Now that the Democrats control both houses of the General Assembly, the Budget bill can (and already is) being used to push policy initiatives that the Governor opposes. Indeed, based on the just-released conference report of the Budget bill, the General Assembly seems likely to require—through language in the Budget—Virginia to rejoin the Regional Greenhouse Gas Initiative (“RGGI”).[1] Withdrawing from RGGI was a signature policy goal of the Governor.[2]
So what happens? Is there any limit to using the Budget for this purpose? Two Virginia constitutional provisions come into play: (1) the single-object rule, and (2) the Governor’s item veto.
Single-Object Rule
Article IV, § 12 of the Virginia Constitution provides that “[n]o law shall embrace more than one object, which shall be expressed in its title.” This provision, which has been part of the Virginia Constitution since 1851, is designed to address two primary issues: to prevent “log-rolling, whereby two or more blocs (which might separately be minorities in the legislative body) combine forces on a bill containing several unrelated features” to pass it, and to ensure fair notice to legislators and the public regarding the content of bills before the General Assembly.[3] Thus, there is a substantive rationale for the provision (anti-log-rolling) and, procedural (fair notice).
In practice, however, the Supreme Court of Virginia has generally focused on the procedural element as dispositive, i.e. that the object of the legislation be expressed in the bill’s title. In Commonwealth v. Brown, the Supreme Court of Virginia stated that the single-object rule is satisfied if the contents of an act “are congruous, and have a natural connection with, or are germane to, the subject expressed in the title.”[4] There, the legislation related to oysters. And the legislation included numerous diverse provisions regulating the oyster industry, including taxes and fines for failing to comply and which the defendant (Brown) had been charged with violating.
Key for the Court in upholding the law was that the notice interest was satisfied. It held that the purpose of the single-object rule was preventing “the use of deceptive titles as a cover for vicious legislation, to prevent the practice of bringing together into one bill for corrupt purposes subjects diverse and dissimilar in their nature, and having no necessary connection with each other; and to prevent surprise or fraud” in legislation.[5]
Modern cases have generally blessed broad uses of single acts to address multiple topics. For instance, in Commonwealth v. Dodson, the Supreme Court of Virginia blessed certain provisions of the Budget bill that changed the structure of government, forcing more legislative control over the Governor’s budgetary process. The Court found the provisions passed muster, even though they effected a change in statutory law, finding the nothing about them “which should have misled the Legislature or the people, and certainly there is nothing about them surreptitious,” again relying on the procedural purpose of the single-object rule.[6]
And, in 2007, the Supreme Court of Virginia found a comprehensive bill addressing transportation issues to comply with the single object rule. There, the legislation “relating to transportation,” 2007 Va. Acts, Ch. 896, addressed 12 titles of the Code of Virginia, had 23 separate enactment clauses, and multiple provisions seemingly unrelated to transportation (at least not directly). But the Supreme Court of Virginia found no issue under the single-object rule, finding that the topics, while diverse, all “are congruous and have a natural connection with the subject of transportation expressed in the title.”[7]
Thus, where the issue has been litigated, the Supreme Court of Virginia has generally been extremely deferential to the General Assembly. But, it is not hard to imagine that an emboldened General Assembly might push things too far, even for the deference given to legislative acts. And if the Governor believes he is unfairly (and unconstitutionally) being asked to choose between funding the government and acceding to provisions he would veto if in a standalone bill, there very well could be a constitutional conflict.
Similar standoffs occurred during the McAuliffe Administration, regarding Medicaid expansion and environmental regulation; however, they were never litigated. Given the even stronger partisan divide today, I would bet on a case asking the Supreme Court of Virginia to revisit whether there is, substantively, any limit on what legislative topics can be included in the Budget bill.
Governor’s Item Veto Authority
The second Virginia constitutional provision that speaks to this conflict is under Va. Const. Art. V, § 6(d), creating authority for the Governor to “veto any particular item or items of an appropriation bill.” Under this authority, could the Governor simply strike out the offensive part of the Budget bill and veto that? Likely no, but the answer is unclear.
We return to Commonwealth v. Dodson, which addresses the item-veto authority. There, the case defined what is an “item” under the Virginia Constitution, and whether the item-veto authority included the ability to strike conditions or restrictions imposed by the General Assembly in appropriating funds. In short, the Court held that an item is an “indivisible sum of money dedicated to a stated purpose,” citing as an example funding for a library building and explaining that the library was an item while the various components of constructing a library were not.[8] Thus, under the Court’s example, the Governor could veto funding for the library, but could not veto the components of constructing a library.
The Court also stated that the Governor may not veto particular conditions or restrictions on appropriated funds in the Budget, as that would violate separation of powers principles to allow the Governor to excise provisions the Legislature attached to its appropriations.[9] Thus, if, as the General Assembly is now proposing, the Budget is conditioned on rejoining the Regional Greenhouse Gas Initiative, the Governor cannot simply item-veto that condition.
But here is where the item-veto authority and the single-object rule may come together. In Dodson, the Supreme Court of Virginia stated that the Governor “undoubtedly” has the power to “veto[] items or unconstitutional provisions . . . in proper cases.”[10] And this was not mere dicta. The Court upheld certain “item” vetoes of provisions that, for instance, provided funding for the Virginia Military Institute for an indefinite period, which would violate the above-cited constitutional limit on the duration of state appropriations.[11]
Thus, armed with the item-veto authority, the Governor might decide to strike certain offensive provisions, if he or she determines that they violate constitutional provisions, perhaps such as the single-object rule.
Conclusion
These issues are, at this point, academic. And, it remains the case that the new majorities in the General Assembly and the Governor likely both share a strong desire not to push past the breaking point and to ensure that a budget is enacted without disruption to the operation of state government.
But, for now, things are moving in the direction of conflict. The General Assembly is using its budget power to push initiatives the Governor opposes. No signs yet of any grand bargains. And if the Governor acquiesces, what real relevance will the Governor have in the legislative process?
It’s all a recipe for a constitutional conflict that ultimately will need to be decided by the Supreme Court of Virginia. Hopefully, before the lights go out.
Noah, and this article, were quoted in a recent VPM news article by Jahd Khalil about the Virginia Budget debate and how it could touch on constitutional issues. Read more on that article here.
[1] See Joint Conference Committee Report on House Bill 30 (Mar. 7, 2024) (inserting Item 366 #1c, “[t]his amendment requires the Commonwealth to rejoin [RGGI] and directs the appropriate agencies to take the necessary actions to rejoin RGGI”), available at budget.lis.virginia.gov/get/amendmentpdf/4915/
[2] See Executive Order Number Nine (2022), Protecting Ratepayers from the Rising Cost of Living Due to the Regional Greenhouse Gas Initiative, available at EO 9- RGGI.docx (virginia.gov)
[3] 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 528 (1974) (citing 1 Thomas M. Cooley, Constitutional Limitations 296 (8th ed.; Boston, 1927) and Millard H. Ruud, “No Law Shall Embrace More Than One Subject,” 42 Minn. L. Rev. 389 (1958)).
[4] Commonwealth v. Brown, 21 S.E. 357, 360 (Va. 1895).
[5] Id.
[6] Commonwealth v. Dodson, 11 S.E. 2d 120, 133 (Va. 1940).
[7] Marshall v. N. Va. Transp. Auth., 657 S.E. 2d 71, 78 (Va. 2008). The Court ultimately found another, unrelated constitutional infirmity in the law related to taxation provisions.
[8] Dodson, 11 S.E.2d at 124, 127.
[9] Id. at 127.
[10] Id. at 133.
[11] Id. at 134.
Tuesday, March 5th, 2024
Having now had the privilege (or pain) of practicing criminal law in three different states, I can safely say that not all criminal discovery rules and practices are even remotely equal.
In law school, we all read Brady and Giglio and know well that a criminal defendant is entitled to certain information, namely exculpatory and impeachment evidence. However, I am sure more than one state criminal practitioner has had a state court judge or prosecuting attorney look at them as if they are speaking Greek whenever either Brady or Giglio is mentioned, and unfortunately, more than once in this last year, I have seen Virginia prosecutors hesitate or even refuse to turn over exculpatory or impeachment evidence without direct court involvement.
Virginia’s Discovery History
Virginia’s discovery rules are historically limited and have prevented justice for citizens of the Commonwealth, and discovery reform has been a contentious topic for Virginia. Access to discovery is essential to ensure defendants receive their right to due process. By 2021, the Virginia Supreme Court expanded criminal defendant’s access to police reports, witness statements, and witness lists. Despite being years late on this reform and still behind many states on the expanse of criminal law discovery rules, it was a welcome change in Virginia.
Virginia amended Rule 3A:11, the protocol for producing discovery in criminal matters for both the defense and the Commonwealth. The Supreme Court of Virginia states the “constitutional and statutory duties of the Commonwealth’s attorney to provide exculpatory and/or impeachment evidence to an accused supersede any limitation or restriction on discovery provided pursuant to this Rule.” While Rule 3A:11 mirrors some of the ideals of Brady and Giglio, such as the requirement to disclose exculpatory evidence to the criminal defense attorneys and the extension to include impeachment material for any prosecution witness, it can be read to allow the Commonwealth’s Attorney too much discretion, which was the hallmark of the prior discovery rules.
Often criminal defense counsel is left arguing constitutional case law in a motion to compel the production of information that clearly falls within the definitions of exculpatory or impeachment material in Brady and Giglio jurisprudence, while the prosecutor remains hyper-focused on Rule 3A:11. At other times, criminal defense counsel face a prosecutor arguing they do not have to turn over any information unless it is “exculpatory.” “Proving” exculpatory or impeachment material exists in records the defendant has never seen is nearly impossible, and I have encountered many prosecutors who insist such a threshold showing is necessary to require the government to disclose their records.
Virginia Discovery Compared to Other States
In the federal system and for states like Colorado and Maryland (where I have also practiced), criminal discovery rules are much more expansive, and the failure to provide discovery can result in sanctions or even the outright dismissal of a case. In Virginia, however, there is little recourse for criminal defendants who find themselves on the wrong side of a prosecutor with a very narrow view of their discovery obligations.
Our neighbor Maryland’s hearty criminal discovery rules not only require the prosecuting attorney to produce more, but Maryland’s rules require the prosecutor to affirmatively provide discovery without a request from the defense. “Without the necessity of request, the State’s Attorney shall provide to the defense: statements, criminal records, state’s witnesses, prior conduct, exculpatory information, impeachment information, including any relationship the witness has with the prosecutor, prior convictions, medical or psychiatric conditions of the witness, etc.” (paraphrasing Md. Crim. Rule 4-263). In Virginia, a criminal defendant must move the court to order the Commonwealth to produce discovery, and even then, Rule 3A:11 does not even require the Commonwealth to turn over police reports or witness statements. The Commonwealth can satisfy its burden by allowing “inspection and review,” leaving the defendant’s right to access discovery entirely dependent on the responsiveness and personal schedule of the individual prosecutor assigned to the case. In my experience, some Virginia prosecutors simply refuse to return the calls and emails of defense counsel, making such scheduling nearly impossible.
Thousands of miles away, Colorado adopted criminal procedure rules that more closely mirror the federal rules. On more than one occasion, I watched the Court strongly chastise a District Attorney (DA) if there was even a hint of a discovery violation, and on the first day of one of my trials, a DA dismissed an entire case when we all discovered that law enforcement failed to provide dash camera footage to the DA. Colorado Rule of Criminal Procedure 16, like Maryland’s Rule 4-263, is more expansive than Virginia’s Rule 3A:11. It requires that the prosecuting attorney ensures a flow of information between investigative personnel and disclose any information and material relevant to the charges against the accused, and it requires shorter timeframes for when discovery must be turned over to the defense.
While certainly these rules are not followed perfectly in every county in Maryland and Colorado by every practitioner, the mere fact that the rules recognize these disclosure obligations to a criminal defendant puts those defendants in a very different place compared to those in Virginia.
Conclusion
While updates to Rule 3A:11 improved on its predecessor and attempted to promote justice, it fell short of doing just that. Virginia needs to either adopt by rule or in practice more explicit discovery policies and disclosure obligations, which would require the exchange of all evidence possessed by the government to the defense, an obligation for prosecutors to seek out that information from law enforcement agencies, and an obligation to produce copies to the defense. This change would remove the burden from the prosecutor to decide which evidence is exculpatory or has impeachment value, a heavy burden that they are in a poor position to determine without insight into trial strategy from the defense. Fair access to all evidence is crucial to a fair trial in the case and is the bare minimum of what is needed to promote justice in Virginia’s criminal system.
The criminal justice system should be about due process, justice, and even public safety.
Liberal pre-trial and pre-plea discovery also does not impose undue logistical burdens on prosecutors. Trial by surprise has never been a tenet of the American justice system. If a prosecutor is confident about their case, there should be no issue with handing over all discovery, whether that is in the pre-indictment or post-indictment phase. Failure to provide discovery and sometimes a straight refusal to provide discovery does not express the values enshrined in Giglio or Brady. Without full, open discovery, more criminal defendants, including white-collar investigation defendants, will feel unjustly targeted, railroaded by the process, and victimized by their prosecution. Nothing poses a greater risk to the public trust in our justice system.
If you are in need of a white collar law firm and experienced white collar defense attorneys, please don’t hesitate to Contact Us at Gentry Locke today! Even for clients or individuals not yet suspected or accused of misconduct, we provide compliance advice and proactively identify issues for corporate and individual clients to avoid violating the law, especially newly enacted legislation or regulations.
Tuesday, March 5th, 2024
A doctor’s negligence can have devastating and life-altering effects on a patient. A slip of the knife, a missed diagnosis, an unreasonable delay in treatment: All of these can lead to catastrophe. Many times, a patient’s only recourse after an encounter with a negligent healthcare provider is the Civil Justice system and a lawsuit to recover those damages caused by that provider with experienced medical malpractice attorneys.
Although a suit for medical malpractice is just a more specific and specialized claim of negligence, Virginia law places a number of guardians at the gates of the courthouse, in an attempt to weed-out all meritless claims against the Commonwealth’s providers of health care. These guardians take the form of statutory and procedural requirements with which a plaintiff must comply, in order to hold attempt to a health care provider liable for negligent actions. Should a litigant make a mistake, the consequences for their case can be dire. This is why you need a medical malpractice law firm that has knowledge in the subject and experienced lawyers for doctor negligence. One such statutory and procedural requirement is the requirement for a certifying expert.
The Requirement for a Certifying Expert in a Medical Malpractice Case
Section 8.01-20.1 of the Code of Virginia applies to personal injury claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
Similarly, Section § 8.01-50.1 of the Code of Virginia applies to wrongful death claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
In other words, if a plaintiff asserts a claim for medical negligence against a health care provider, whether that claim is a claim for personal injury or a claim for wrongful death, that plaintiff must have a qualified expert review the case in advance, and that expert must conclude that the defendant’s health care provider did something wrong which caused the injuries or death at issue. Furthermore, the plaintiff must have obtained a positive review from a qualified expert before serving the lawsuit on the target health care provider. This raises the important question: What is required for a witness to “qualify” as an “expert witness?” The Code of Virginia has a lot to say about this, as well.
The Expert’s Qualifications
Both of these statutes—personal injury and wrongful death malpractice—require the Plaintiff to receive certification from an expert he or she “reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20.” Va. Code §§ 8.01-20.1, 50.1.
Va. Code §8.01-581.20(A) states:
A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
(emphasis added).
In sum, two things are required:
- The certifying expert must have knowledge of the standards applicable to the defendant’s health care area of practice. The various areas of practice in the health care industry are nearly infinite: nursing, in all its various forms; surgery, from orthopedic to neuro; family medicine; OB/GYN. The list is nearly endless. The plaintiff must, however, find the right expert for the case.
- The certifying expert must have had an active clinical practice in the defendant’s specialty or a related field within one year of the defendant’s negligent act or omission.
These two prerequisites for qualification require a potential medical malpractice plaintiff to evaluate their potential expert witnesses. Do they know what they claim to know? Have they had the right education and training? Do they practice the right area of medicine? Is their experience recent enough to qualify under the statute? If the answer is “no” to any of these questions, then the plaintiff must keep looking for the right fit.
The consequences of having no expert witness, or even having the wrong kind of expert witness, can be dire. If the plaintiff fails to have a qualified certifying expert before serving the lawsuit on the defendant, or if the expert that they have certified the case is deficient in some way, it could cost the plaintiff the case. The stakes couldn’t be higher.
Consequences for Failing to Get Proper Certification
Both Va. Code § 8.01-20.1 and § 8.01-50.1 carry with them significant penalties for failing to comply with this expert certification requirement:
If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.
(emphasis added).
The plaintiff’s case truly is on the line. If the plaintiff did not obtain the necessary certification prior to service on the defendant, the court is required (“shall”) to impose sanctions. Pursuant to Va. Code § 8.01-271.1, cross-referenced in the statutes, these sanctions run the gamut from simply reimbursing the defendant for the expenses—including legal fees—incurred in responding to the un-certified Complaint all the way to the dismissal of the case, without permission to refile and re-serve the case, after complying with these statutes. This is truly a worst-case scenario: The injured plaintiff who seeks compensation for healthcare-related injuries loses his or her opportunity to take legal action against the negligent healthcare provider.
Talk to An Attorney
If you have been wrongfully injured by a healthcare provider, this is not a process that you should be expected to deal with alone. The stakes are just too high to attempt to navigate this process by yourself. The requirement of expert certification is just one of many traps for the unwary that lie hidden in Virginia’s medical malpractice law. Experienced medical negligence lawyers who specialize in medical malpractice litigation can walk you through the process and guide you past these guardians of the courthouse gates.
Please contact us or call 866.983.0866. Our initial consultation is always free and confidential. We have a team of experienced Virginia medical malpractice attorneys who would be more than happy to assist you.
Tuesday, February 27th, 2024
Plaintiff personal injury clients are different than other types of clients because their Virginia personal injury case is generally their first interaction with the civil legal system. Clients sometimes have an expectation that the process moves fast. Television shows, like Suits and Law & Order, may be to blame for such an expectation. Unfortunately, this expectation is mistaken—the legal process is quite slow. It can take anywhere from weeks to several years to resolve a Virginia personal injury case. This can be especially difficult for a plaintiff who is the victim of a trucking collision, motor vehicle collision, slip-and-fall accident, defective product, or medical malpractice. These accidents can be life-altering, and plaintiffs not only feel the physical effects but also the emotional and financial effects. Virginia lawyers who understand and care about these effects on their clients tend to move cases to resolution more quickly.
This article is intended to walk you through the basic legal process of a Virginia personal injury case. Generally, a Virginia personal injury case consists of the following steps: (1) hiring counsel, (2) investigation, (3) pleading, (4) discovery, (5) motions, (6) trial, and (7) appeals. Settlement may occur during any of these stages.
Hiring Counsel
If you believe that you have a Virginia personal injury case, and you have not already done so, it is imperative that you immediately contact a Virginia personal injury attorney. At-fault parties and companies often act rapidly in response to an accident. For example, some trucking companies have “rapid response teams” that may arrive at the scene of a crash while first responders are still there. The sooner you contact a Virginia personal injury attorney, the sooner your attorney will be able to help you preserve all potentially relevant evidence to obtain the most amount of compensation possible. A skilled Virginia personal injury lawyer will begin working on your case as fast as possible by proceeding with the investigation phase.
Investigation
Once you have hired a Virginia personal injury lawyer, he or she will begin investigating and collecting the facts and circumstances of the trucking collision, motor vehicle collision, slip-and-fall accident, medical malpractice, product defect, etc. Gentry Locke personal injury lawyers will utilize their team, which consists of an in-house investigator, in-house nurses, paralegals, and legal assistants. The investigation phase often includes determining the potential at-fault parties, researching potential legal claims and the statute of limitations for your lawsuit, sending a preservation letter to the at-fault parties, sending Freedom of Information Act requests to governmental entities, and interviewing potential witnesses. If you have been involved in a motor vehicle or trucking collision, this phase also generally includes inspecting and photographing the scene of the crash and the vehicles involved in the crash. During the investigation phase, your Virginia personal injury lawyer should request, obtain, and review all of your relevant medical records and bills to determine the nature and severity of your accident-related injuries. Your lawyer should also request, obtain, and review all of your relevant employment records if you have missed work or lost wages due to the accident.
Pleading
After the investigation phase is complete, which may be only weeks after hiring counsel, but could take a year or more depending on the specific circumstances of your case, your lawyer will likely file a lawsuit on your behalf. Lawyers use the fancy legal term “pleading” to describe the stage when each side files their initial documents in the lawsuit. The first document filed in a case is called a “complaint,” which is filed by the plaintiff, and it details the facts and legal claims against the defendant. After filing the complaint, the plaintiff’s lawyer will have a time period to serve the complaint on the defendant, which may be up to a year in state court. After service, the defendant will then have 21 days to file a responsive pleading. Responsive pleadings can take many forms, but most often the defendant files what is called an “answer,” which admits or denies the allegations in the complaint and asserts any affirmative defenses. The pleading stage may consist of hearings if the defendant files a responsive pleading asking the case to be dismissed or asking for additional information.
Discovery
“Discovery” denotes the process in which the parties exchange information that may be related to the lawsuit. Discovery occurs during and after the pleading stage. Like responsive pleadings, discovery can take many forms: depositions, interrogatories, requests for the production of documents, requests for admission, inspections, mental or physical examinations, etc.
A deposition is where a potential witness answers questions under oath before a court reporter, who produces a transcript that can be used for certain purposes at trial. Your lawyer will meet with you and prepare you for your deposition, and your lawyer may take depositions of eyewitnesses, law enforcement officers, the defendant, your health care providers, and any experts designated by the defendant. Interrogatories are specific written questions asking the other side to answer such questions in writing and under oath. Requests for the production of documents ask the other side to produce documents that may be potentially relevant to the lawsuit, while requests for admission ask the other side to admit to certain propositions.
The discovery process is aptly named because it is a process whereby parties “discover” much more about the case. Discovery can reveal additional misconduct by the defendant or reveal additional parties that may be at fault. If done correctly, discovery shows the parties the strengths and weaknesses of their positions.
Motions
“Motion” is a broad term that describes a request by a party’s lawyer that the court take some specific action. Motions may be an oral request, but they are often in writing and filed with the court. Motions are filed throughout the litigation process, and they may be filed during the pleading and discovery stages. Motions ask the court to take actions such as: dismiss the case, exclude certain evidence from trial, strike expert testimony, give a party additional time to do something, continue the trial, etc. Contested motions generally result in briefing and a hearing. “Briefing” is a process where both sides research the facts and law and file detailed documents (briefs) with the court that describe why they should win the motion. The court may hold a virtual or in-person hearing to hear oral arguments from the attorneys before making its decision. Once the court reaches its decision on the motion, the court will issue an order that announces the decision.
Trial
Trial is the process that you likely know the most. This is the part of a Virginia personal injury case that you have likely seen on television. This is where the parties, lawyers, and witnesses appear in court so that a judge or jury can decide the case. In Virginia circuit court and in federal court, the parties generally request a jury to decide the case. In Virginia general district court, which is a court for smaller personal injury claims, a judge will decide the case.
A Virginia jury trial generally consists of the following steps: (1) a pre-trial motions hearing, (2) jury selection, (3) opening statements, (4) the plaintiff presents his or her witnesses and evidence, (5) the defendant presents his or her witnesses and evidence, (6) closing arguments, and (7) jury deliberation. During the presentation of evidence, each side will have an opportunity to cross-examine or ask questions of the other side’s witnesses. The trial will end by the judge announcing the verdict and entering an order for the prevailing party. After the trial, the losing party may make post-trial motions to reduce or set aside the jury’s verdict.
Appeals
Appeals commonly occur after a trial has taken place, but generally speaking, they may occur at any point where the court enters a final order disposing of the case. This means that if the court sustains (grants) a motion to dismiss in its entirety, then there may be an appeal before trial. In narrow circumstances, an appeal may occur before the court enters a final order. Either party may appeal a court’s final decision. Sometimes there is an automatic right to appeal to the higher court, and sometimes the higher court has discretion to accept or deny the appeal. It is important to note that except for an appeal from the Virginia General District Court to the Virginia Circuit Court, an appeal does not consist of repeating the initial trial. Appeals are limited to very specific legal issues, such as whether the trial judge incorrectly admitted or excluded certain evidence at trial.
The Virginia appellate process is complicated and it requires specific expertise. If you have a case that you think should be appealed or has been appealed by the other side, contact our Virginia appellate attorneys today.
Settlement
Although Gentry Locke lawyers prepare for trial from day one, the reality of today’s world is that many cases settle before trial. Settlement can occur during any one of the steps outlined above. A case may settle through negotiations between counsel or it may settle through a process called mediation. Settlement negotiations are usually initiated by the plaintiff’s attorney, who will send a demand package containing supporting evidence to the defendant or insurance company. Mediation is where a third-party neutral (a mediator), usually a judge or retired judge, facilitates settlement discussions between the parties. During mediation, the mediator advises both sides of the risks of their positions and assists the parties in reaching a voluntary resolution.
Cases settle for three main reasons: (1) risk, (2) cost, and (3) delay. A jury trial can be risky to both sides, especially given that a random selection of citizens has the power to decide the merits of the case. A jury may award a verdict far in excess of what the defendant expects, but a jury may also find that defendant was not liable (responsible), which leaves the injured plaintiff with nothing. Additionally, jury trials are expensive. In personal injury cases, expert medical testimony is generally required, and doctors can costs hundreds or even thousands of dollars per hour to prepare their reports and give their testimony. Finally, Virginia courts have busy dockets, meaning a jury trial may be scheduled for a year or more after the lawsuit is filed. Defendants frequently try to avoid or delay trial by filing a motion to continue, hoping to wear down the plaintiff to settle. These factors, and others, lead clients to settlement. This is another reason why hiring the right attorney is a crucial decision—our Virginia personal injury attorneys are trial lawyers who can advise you as to the specific risks associated with your case and assess whether negotiation, mediation, or trial is appropriate for your case.
Please note that every case is different and the specific steps of your case may differ depending on the status of your health, and the approach adopted by your Virginia personal injury lawyer. Some cases demand speedy resolution, while other cases may call for a wait-and-see approach, especially if the plaintiff is still treating for their accident-related injuries. Contact Us today so one of our Virginia personal injury attorneys can advise you as to the approach that is suitable for your case.
Tuesday, February 20th, 2024
The long-awaited amendments to Federal Rule of Evidence 702 took effect across federal courts on December 1, 2023. Companies and individuals whose trial and settlement outcomes come down to expert witness testimony should pay close attention to the growing body of caselaw defining the import of these amendments.
Rule 702 provides a key tool for litigants to keep “junk science” out of trial, and imposes on courts an important “gatekeeping” responsibility to exclude any expert opinions that lack sufficiently reliable methodologies. Although “[n]othing in the amendment[s] imposes any new, specific procedures” to the rule, the Advisory Committee’s comments strengthen the rule in a number of ways.
The amendments therefore require litigants to take special care in selecting their expert witnesses and preparing them for trial. They also create more promising opportunities for litigants to challenge baseless or weak expert opinions offered by adversaries.
Rule 702 Amendments “Clarify” and “Emphasize” Courts’ Gatekeeping Responsibilities
With the new amendments, Federal Rule of Evidence 702 now reads as follows (amendments are italicized and underlined):
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
As noted in its comments, the Advisory Committee intended for its amendments to “clarify” and “emphasize” courts’ gatekeeping responsibilities under the rule. Consequently, courts have treated the amendments as clarifications or reminders of the standard, rather than changes to it. The United States Court of Appeals for the Fourth Circuit, for instance, cited the amendments before their effective date in reversing a $4.8 million wrongful death verdict obtained in part through unreliable expert witness testimony.[1] Other courts have similarly noted that the admissibility analysis often “remain[s] the same” under the new and previous versions of the rule.[2]
Practice Pointers
Nevertheless, the Advisory Committee’s comments strengthen the rule and bring to light a number of focus areas for parties—both in preparing their own experts, and challenging expert opinions offered by the opposing party.
- Prepare Your Experts for Increased Scrutiny, and Take Advantage of Opportunities to Challenge Questionable Expert Opinions Offered by Adversaries.
The 2023 amendments make clear that proponents of expert testimony have the burden, “by a preponderance of the evidence,” to establish that the testimony satisfies Rule 702 requirements. This standard comes from Federal Rule of Evidence 104(a), and squarely places the threshold assessment of an expert’s factual basis and methodologies with the district court.
In recent years, some courts had taken lax approaches to the rule and punted questions surrounding “shaky” expert opinions to the jury.[3] The 2023 comments explain that Rule 702 does not allow for such approaches: although an expert’s opinion can be admitted notwithstanding relatively insignificant reliability concerns, it is “incorrect” for courts to treat “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” as “questions of weight and not admissibility.” Courts must instead address such “critical questions” head on at the admissibility stage, before the expert opinion reaches the jury, and exclude any expert evidence that is not sufficiently reliable.
As a result, litigants seeking to introduce expert witness testimony should prepare their experts for increased scrutiny, including of the expert’s qualifications and methodologies. Conversely, a litigant seeking to exclude an expert’s testimony should fully embrace this standard and, where appliable, note the proponent’s inability to demonstrate the sufficiency of its expert’s qualifications and methodologies by a preponderance of the evidence.
- Ensure Consistency Between the Certainty of Your Own Expert’s Opinions and Known Error Rates of Their Methodologies, and Note Any Mismatches Present in Your Opponent’s Expert Evidence.
The comments expressly warn that “forensic experts” should “avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology [utilized in forming their opinions] is subjective and thus potentially subject to error.” The comments also instruct courts to “(where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results.”
Although focused on forensic experts, the import of this guidance applies to expert methodologies in a wide range of industries—such as forensic fingerprint matching analyses with certain error rates; medical diagnostic methods known to have certain false positive rates; or certain statistical analyses with known confidence intervals. Litigants should ensure a match between their own experts’ methodologies and the degree of certainty with which they offer their opinions, and those lodging expert challenges should highlight mismatches between the two.
- Take Note of Subjectivity Involved in an Expert’s Opinions.
Relatedly, parties should take note of the comments’ indication that “subject[ivity]” can make expert opinions “potentially subject to error.” Expert opinions may involve some level of subjectivity in certain types of cases—for instance, medical experts often must choose between two possible, but conflicting diagnoses; auto accident reconstruction experts must sort between competing theories and possible causes of accidents; and financial and accounting experts often form working assumptions in calculating an individual’s lost income or a company’s lost profits. While some subjectivity can be tolerated under the rule, expert conclusions that involve more subjective than objective factual analysis run the risk of exclusion under the new Rule 702.
- Ensure Your Experts Comply with Basic Principles of the Scientific Method, and Challenge Expert Opinions That Do Not.
The amendments require that the expert’s opinion reflect a reliable application of scientific methods and principles to the facts of the case. These methods and principles often come from industry-specific standard and guidance, such as American Society for Testing and Materials (“ASTM”) standards, and Occupational Safety and Health Administration (“OSHA”) or other workplace health and safety standards.
Importantly, however, Rule 702 also requires compliance with basic principles of the “scientific method”—including assessment of hypotheses through replicable tests and investigation and consideration of all relevant facts (both “good” and “bad”).[4] The Rule 702 amendments provide more opportunities to challenge experts who fail to do so, whether through “cherry pick[ing]” from relevant data or resorting to “result-driven” reasoning.[5] Conversely, parties preparing their experts should put their experts to the test and correct any shortcomings in their investigation and analysis prior to offering their opinions.
Conclusion
Although the December 2023 amendments ostensibly “clarify” what Rule 702 has required of experts all along, parties can expect courts, and each other, to treat expert testimony with increased scrutiny. Litigants should carefully review the amendments and comments as a checklist for ensuring their experts’ opinions are admissible. And those faced with “shaky” expert opinions from opponents should treat the amendments and comments as a playbook for planning their modes of attack.
Gentry Locke lawyers frequently prepare litigation experts for trial and handle admissibility challenges under Rule 702 and its state law counterparts. Call us for more information or assistance in navigating the new amendments.
[1] Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021).
[2] E.g., Brown v. Saint-Gobain Performance Plastics Corp., No. 22-cv-018-LM, 2023 U.S. Dist. LEXIS 230628, at *4 n.1 (D.N.H. Dec. 29, 2023).
[3] See, e.g., Hardeman v. Monsanto Co., 997 F.3d 941, 962 (9th Cir. 2021) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)) (finding no error in trial court’s “slight deference” to experts with “borderline opinions” on the ground that “[t]he interests of justice favor leaving difficult issues in the hands of the jury” and relying on the trial process to “attack shaky but admissible evidence”).
[4] In Re Lipitor (Atorvastatin Calcium) Mktg. v. Pfizer, Inc., 892 F.3d 624, 634, (4th Cir. 2018) (noting that courts “consistently” exclude expert opinions formed through “result-driven analysis, or cherry picking” of data because “such an approach does not reflect scientific knowledge, is not derived by the scientific method, and is not good science”) (internal citations and quotations omitted).
[5] See n. 4. Although the 2023 Advisory Committee comments do not specifically address the scientific method, the emphasis of courts’ gatekeeping responsibilities will likely result in an increased focus on this topic at the admissibility stage. The comments note that “[j]udicial gatekeeping is essential because . . . jurors may . . . lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.”
Wednesday, February 14th, 2024
Published with the permission of the Virginia State Bar. Originally published in the Virginia Lawyer, Vol. 67/No. 3.
The Supreme Court of Virginia has approved a pilot program for limited appellate mediation in the Court of Appeals of Virginia and Supreme Court of Virginia beginning January 1, 2019. The Court’s announcement recognizes the importance of expanding the availability of alternative dispute resolution to all levels of Virginia’s court system.
The pilot program will run for two years. It is designed to support mediation in Virginia’s appellate courts so litigants may make informed decisions about resolution of their disputes and fashion creative solutions, even after entry of a final or appealable order.
Appellate mediation will be available in certain civil cases where both parties are represented by counsel. Appeals where one or both parties are pro se are not eligible for appellate mediation through the pilot program. In the Court of Appeals, mediation will be available in equitable distribution and/or related attorney fee disputes. In the Supreme Court, mediation will be available only where a petition for appeal has been granted; motions to vacate criminal convictions and petitions for actual innocence are not be eligible for appellate mediation.
How appellate mediation will work
Appellate mediation is entirely voluntary. In the Supreme Court of Virginia, the parties will be informed of the availability of appellate mediation when a writ is granted. At that time, the clerk of the Supreme Court will send a letter to the parties describing mediation and explaining that if all parties agree to mediation and notify the clerk in writing of their agreement within 14 days, any further appellate deadlines (except the statutorily-required bond deadline) will be stayed for a period of 30 days to allow the parties an opportunity to mediate. The clerk’s letter will attach a list of certified appellate mediators but will explain that the parties may choose any mediator, whether or not the mediator is on the list.
In the Court of Appeals, appellate mediation is not available until the Court receives the record in a domestic relations case. At that time, the clerk of the Court of Appeals will send the parties a letter similar to that sent by the Supreme Court clerk. As in the Supreme Court, if the parties agree to mediate, there will be an automatic stay of the proceedings for 30 days to provide an opportunity to mediate. If the Court of Appeals issues a stay, the clerk will notify the parties of the deadline for filing the next document.
Appellate mediation will promote access to justice
Chief Justice Donald W. Lemons initiated the study of mediation in the appellate courts last year when he asked the Joint Alternative Dispute Resolution Committee to appoint a group to consider the issue. The Joint ADR Committee appointed the Special Committee to Study Appellate Mediation, which includes members of the appellate bench, appellate litigators from the Virginia Bar Association and VSB, and members of the Joint ADR Committee.
Following months of study, the special committee issued a report in June 2018, recommending that the Supreme Court and Court of Appeals undertake the pilot program. According to the special committee’s report, appellate mediation is “a vehicle” to provide “viable appellate mediation for economically disadvantaged litigants” in an effort to promote access to justice at the appellate level of the commonwealth’s court system.
Training and certification of appellate mediators
The special committee also recommended that the Judicial Council of Virginia approve specific training and certification for appellate mediators during the pilot projects. To date, there is no special training in Virginia for mediators regarding the unique aspects of appeals in Virginia’s courts. The special committee hopes to close this gap by offering a new two-hour course focusing exclusively on appellate litigation in Virginia. This course will be required for individuals (except those who have served on the Supreme Court and Court of Appeals) who seek to be certified as appellate mediators.
To become a certified appellate mediator in Virginia, one must be certified as a mediator in Virginia or complete the 20-hour basic mediation course. The special committee has also recommended additional minimum qualifications for certification of appellate mediators in each appellate court to ensure that mediators have the skills necessary to effectively mediate disputes at the appellate level.
The Joint ADR Committee is holding a training program for interested appellate mediators on November 14-16, 2018, in Richmond. For information about the training course, go to the events section of the VSB website. The report of the special committee can be found at: https://cdn.ymaws.com/www.vba.org/resource/resmgr/adr/report-special_cmte_to_study.pdf.
